Look before you leap: states’ prevention and anticipation duties under the right to science

Abstract

ABSTRACT States have under the right to science an obligation to prevent or mitigate harm of scientific progress and its applications. This obligation is derived from the right to be protected against the harmful effects of scientific progress and its applications, a dimension of the right to science. However, preventing the harmful effects of scientific progress and its applications can sometimes conflict with other human rights or with scientific freedom, which is also part of the right to science. In such cases, limitations on one right might be required to protect another, whereby the different interests need to be properly balanced. While the duty to prevent harm is well established in international human rights law, it is yet obscure if the anticipation of potential harms to come is possible under the existing framework of international law. While not a legal concept, entry points for anticipation are already covered under the current international law and can be drawn together by a cross-fertilisation of the obligation to prevent, the precautionary principle and due diligence. The precautionary principle and due diligence can provide guidance on when and under what circumstances situations for anticipation are triggered and conducted. Both concepts involve a necessity and proportionality test, which is also inherent to limitations under international human rights law.